Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138

Court of Queen ’ s Bench of Alberta Citation: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138 Date: 20160310 Docket: 1403 06927 Registry: Edmonton Between: Sobeys West Inc and Sobeys Capital Inc Applicants - and - Alberta College of Pharmacists Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ I.

Introduction [ 1 ] This is an application by the Applicants (“Sobeys”) for a Judicial Review of the decision of the Respondent, the Alberta College of Pharmacists (“College”) dated April 10, 2014, prohibiting pharmacists and pharmacies from offering inducements (“Inducement Prohibitions”) to customers for the purchase of pharmaceutical drugs and other products and services.

II. Background Facts [ 2 ] The College is the professional governing body that regulates pharmacists and their practices. The statutory authority of the College is derived from the Health Professions Act , RSA 2000 c. H-7. The College’s responsibilities include registration of pharmacists, the establishment of standards of practice and codes of ethics and a professional discipline process. In addition, the College also regulates licensed pharmacies and a provision of pharmaceutical services under the authority of the Pharmacy and Drug Act , RSA 2000 c.

P-13. [ 3 ] The Health Professions Act provides for the pharmaceutical profession to be self-regulated. [ 4 ] For several years, the College has been considering the implementation of regulations prohibiting inducements. [ 5 ] On April 10, 2014, the College adopted regulations (as part of the Code of Ethics and Standards) prohibiting pharmacists or pharmacy technicians from providing inducements that are conditional on a patient obtaining a drug or a professional service from them or a pharmacy. [ 6 ] The inducement prohibitions, which were scheduled to come into effect on June 10, 2014, were stayed by the Court of Queen’s Bench on June 4, 2014. [ 7 ] The Judicial Review application came before this Court on December 2 & 3, 2015.

Following a day and a half of submissions and discussion, the Court decided that the appropriate standard of review to the implementation of the inducement prohibitions by the College was correctness. This determination was made notwithstanding that both Sobeys and the College had agreed that the applicable standard of review was one of reasonableness. The Court advised the parties that extensive reasons regarding the standard of review of correctness would be provided at a later date. The following are those reasons. III.

Legislation and “Inducement Prohibitions” [ 8 ] The relevant legislation in relation to the issue before the Court is contained in s 3(1) of the Health Professions Act which reads as follows: 3(1) A college (

a) must carry out its activities and govern its regulated members in a manner that protects and serves the public interest, (

b) must provide direction to and regulate the practice of the regulated profession by its regulated members, (

c) must establish, maintain and enforce standards for registration and of continuing competence and standards of practice of the regulated profession, (

d) must establish, maintain and enforce a code of ethics, (

e) carry on the activities of the college and perform other duties and functions by the exercise of the powers conferred by this Act, and (

f) may approve programs of study and education courses for the purposes of registration requirements. [ 9 ] Also relevant to the issue is s 3(2) of the Health Professions Act , which deals with price fixing competition: 3(2) A college may not set professional fees, provide guidelines for professional fees or negotiate professional fees on behalf of some or all of its regulated members unless the Minister grants the college an approval under

section 27. [ 10 ] Further, s 133(2) & (3) of the Health Professions Act may also have some relevance. It reads as follows:

(2) The college must provide, for review and comment, a copy of a proposed code of ethics and proposed standards of practice and proposed amendments to (

a) its regulated members, (

b) the Minister, and (

c) any other persons the council considers necessary.

(3) A council may adopt a code of ethics and standards of practice and may adopt amendments to a code of ethics or standards of practice after it has reviewed and considered the comments received from a review described in subsection (2). [ 11 ] Lastly, the regulations (or amendments) enacted by the College, pursuant to s 3(1) of the Health Professions Act are as follows: Approved amendments The following amendments to ACP's Code of Ethics, Standards of Practice for Pharmacists and Pharmacy Technicians, and Standards for the Operation of Licensed Pharmacies were approved by ACP council on April 10, 2014.

Amendment to the Code of Ethics Amend Principle 1 by replacing the current

Section 13 with the following: 13. Do not enter into any arrangement with a patient where I provide an inducement to the patient that is conditional on the patient obtaining a drug or professional service from me. Amendment to the Standards of Practice for Pharmacists and Pharmacy Technicians Amend the current Standard 1 as follows: 1. Sections 1.17 and 1.18 are renumbered as 1.21 and 1.22. 2. The following is added after

Section 1.16: 1.17 In Standard 1.18 and 1.19: (a) “inducement” means i a reward, ii. a gift, including a gift of cash, iii. a prize, iv. a coupon, v. points or other mechanisms in incentive or loyalty programs that can be redeemed for rewards, gifts, cash, prizes or other goods or services; and (a) “drug product” means i. a

Schedule 1drug, ii. a

Schedule 2 drug, iii. a blood product, or iv. a

Schedule 3 drug that is provided under a prescription. 1.18 A regulated member must not offer or provide or be party to the offering or provision of an inducement to a patient where the inducement is offered or provided on the condition that the patient obtains: (

a) a drug product, or (

b) a professional service from the regulated member or licensed pharmacy. 1.19 The following are not prohibited under Standard 1.18: (

a) the provision of a drug product, professional service or health care product, aid or device to a patient by a regulated member or licensed pharmacy where, in the professional opinion of the regulated member, it i. is required for compassionate reasons based on the circumstances of the patient, and ii. will support the health care of the patient; and (

b) the provision of a drug product, professional service or health care product, aid or device to augment drug therapy or augment a professional service provided by a regulated member. 1.20 Nothing in Standard 1.18 is intended to limit a regulated member from taking any steps required or necessary to comply with the law that governs the practice of pharmacy referred to in Standard 1.1. Amendment to the Standards for the Operation of Licensed Pharmacies Amend the current Standard 1 by adding the following after

Section 1.2: 1.3 A licensee must not require a regulated member to engage in any activity or be party to any arrangement that will result in a contravention of Standard 1.18 of the Standards of Practice for Pharmacists and Pharmacy Technicians. Coming Into Force

The amendments to the Code of Ethics, the Standards of Practice for Pharmacists and Pharmacy Technicians and the Standards for the Operation of Licensed Pharmacies set out above come into effect on May 1, 2014. IV. Issue [ 12 ] What is the appropriate standard of review as it relates to the enactment by the College of the Inducement Prohibitions? V. Position of the Applicants (Sobeys) [ 13 ] Sobeys argues that the Inducement Prohibitions are ultra vires as they contravene the provisions of s 3(2) of the Health Professions Act which prohibit the regulation of professional fees by the College.

They argue that the Inducement Prohibitions have the effect of regulating the prices by prohibiting a particular form of price competition, which is the reward of loyalty points. [ 14 ] Sobeys further argues that the definition of “Public Interest” adopted by the College in the process of enacting the Inducement Prohibitions is flawed in that it contradicts the opinion of the competition bureau which advised that the prohibition of loyalty programs harms the public interest in competition. VI.

Position of the Respondent (College) [ 15 ] The College argues the Amendments are within the jurisdiction granted to the College under the Health Professions Act . They are intra vires . The College’s position, as outlined in their brief, states that the authority under s 3(1) of the Health Professions Act to act to protect and serve the public interest is a broad authority.

The authority is not only protecting the public from demonstrable harm, but also ensuring high ethical standards and professionalism, fostering an environment in which the pharmacy profession can most effectively serve the public and facilitating quality care. It authorizes the College to adopt ethics and standards that are forward looking and enable pharmacists to effectively serve the public interest as part of primary health care teams.

The College argues that it adopted the Inducement Prohibitions focusing on professionalism, ensuring an environment conducive to effective service to the public and quality care. [ 16 ] The College also contends the Inducement Prohibitions do not set professional fees or provide guidelines for professional fees within the meaning of section 3(2) of the Health Professions Act .

Further, any effect that they may have on the business operations and profit making activities of pharmacies are incidental and consistent with the overall regulatory purposes which serve the public interest. [ 17 ] The College further argues that the Supreme Court of Canada in Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 , [2013] 3 SCR 810 [ Katz ], makes it very clear that the choice made by the College in how they deal with a subject that they are entitled to deal with is beyond the scope of any review for vires . VIII.

Standard of Review [ 18 ] The standards of review in administrative decisions were established by the Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ]; Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339. The Supreme Court held that there are two standards of review applicable to judicial review: correctness and reasonableness: at Dunsmuir at para 45 . [ 19 ] The Supreme Court directs that there are two steps involved in making this determination.

First, courts should confirm whether previous decisions have already considered the degree of deference accorded to a particular category of questions. Second, if the first inquiry is not helpful, then the courts must perform the four factor contextual analysis ( Dunsmuir at para 62 ). [ 20 ] The four factors that must be considered in order to establish which standard of review is applicable are as follows: 1. The presence or absence of a privative clause; 2. The purpose of the tribunal as determined by

interpretation of the enabling legislation; 3. The nature of the question at issue; and 4. The expertise of the tribunal. ( Dunsmuir at para 64 ) [ 21 ] The above are things to take into consideration. One of the factors may be determinative in a specific case, and it may not be necessary to consider all of them in every determination of standard of review ( Dunsmuir at para 64 ). [ 22 ] The Supreme Court of Canada provided further direction to the Courts in Dunsmuir as it relates to the questions of vires .

The Court stated the following: [59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires . We mention true questions of vires to distance ourselves from the extended

definitions adopted before CUPE . It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this

area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives itthe authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to beultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Actionin Canada (loose-leaf), at pp. 14-3 to 14-6.

An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary(City), 2004 SCC 19 , [2004] 1 S.C.R. 485. In that case, the issue was whether the City of Calgary was authorized under therelevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.). That case involved thedecision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow.

Wereiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [23] For the purpose of analytical clarity, in United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19at para 5, [2004] 1 SCR 485 [United Taxi], the Supreme Court observed, inter alia: The only question in this case is whether the freeze on the issuance of taxi plate licences was ultra vires the City under the MunicipalGovernment Act.

Municipalities do not possess any greater institutional competence or expertise than the courts in delineating theirjurisdiction. Such a question will always be reviewed on a standard of correctness: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, at para. 29. There is no need to engage in the pragmatic and functional approach in a review for vires;such an inquiry is only required where a municipality’s adjudicative or policy-making function is being exercised [Emphasis added].

Although United Taxi references a pragmatic and functional analysis (which is now known as standard of review analysis), I stillconsider it helpful and instructive in the circumstances of this case.

A) Four factors set out in Dunsmuir

i) The Presence or Absence of a Privative Clause [24] A privative clause is a statutory direction from parliament or a legislature indicating the need for deference. It does notentirely oust court’s review, but it is an important indicator of deference. In this case, there is no privative clause shielding the College’sdecision from this judicial review. As a result, the absence of a privative clause suggests less deference from the reviewing court. ii) The Purpose of the Administrative Body by

Interpretation of the Enabling Legislation [25] The purpose of the College as provided for in the Health Professions Act and the Pharmacy and Drug Act is to enact a codeof ethics, standards of practice and standards of operation for licensed pharmacies. A further purpose of the College is to regulatelicences for pharmacies and the provision of pharmacy services, including the regulation of the compounding, common dispensing andsale of drugs from licensed pharmacies.

The College further provides for professional self-regulation of its members including settingcompetency requirements, a code of ethics, including the discipline of its members. In essence, the College’s role is as contained in s 3(1)of the Health Professions Act. Lastly, the College’s activities and the manner in which it governs its regulated members “must” be donein a manner that protects and serves the public interest (s. 3(1)(a)). iii) The Nature of the Question at Issue [26] The nature of a question of law that is both:

i) of central importance to the legal system; and ii) outside the specialized area of expertise of the administrative decision maker, will always attract a correctness standard. On the other hand, a question of law that does not rise to this level may be compatible with areasonableness standard where the two above factors so indicate. [27] The question in this case is what is the scope of the College’s duty to protect and serve the public’s interest, in the context ofthe activities of its regulated members?

Put another way, the question is whether the prohibition of inducements offered through loyaltyprograms by pharmacies and pharmacists is ultra vires the College under the Health Professions Act? iv) The Expertise of the Administrative Body [28] The question is whether a tribunal, or adjudicative body, or in this case an administrative legislative body such as the College,has a discreet and special administrative regime which gives them some special expertise in relation to their decisions.

In this case, theCollege does not possess any greater institutional competence or expertise than the reviewing court in dealing and aiding its jurisdictionor in determining what is the public interest. Analogous to the question of the “public interest” is the determination of the “best interestsof the child”.

Just as child welfare authorities are often required to make determinations of best interest of the child, so are the courts: RPv Alberta (Director of Child, Youth and Family Enhancement Act), 2014 ABQB 767, paras 35-36; and RP v Alberta (Director of Child,Youth and Family Enhancement Act), 2015 ABCA 171. [29] Further in this case, the enacting legislation does not define “public interest” and therefore, the College is in no better positionthan the Courts to define it within the legislative framework.

B) Analysis [30] The College argued that the Supreme Court decision in Katz provides an outline of the analytical framework for conducting a

review for vires. I agree. [31] The College further states “the College’s role in adopting amendments to the Code of Ethics and Standards is a legislativefunction and therefore, should be analysed under the Katz principles” (para. 21 of the Respondents’ Supplemental Brief filed February26, 2016). I agree. [32] It is therefore the College’s position that the actions of the College in adopting the Inducement Prohibitions should besubjected to the analysis under the Katz principles. In that regard, it is important to determine exactly what Katz stands for.

In my view,Katz stands for the principle that where the review is one of vires, then a guide has been provided as to how the application of thecorrectness review standard should proceed. Katz is not a case dealing with the selection of the applicable standard of review for vireschallenges.

Rather, it outlined the analytical framework for application when conducting substantive or merit inquiry in relation to vireschallenges of administrative legislation. [33] It is clear from the Supreme Court of Canada, as stated in Dunsmuir at para 59, and in United Taxi, at para 5, that questionsof vires will always be reviewed on a standard of correctness. [34] In my view, enacting the Inducement Prohibitions is an exercise of legislative power by the College (as confirmed by theCollege). As such, the Inducement Prohibitions constitute administrative legislation.

Oftentimes, in cases involving municipal bylaws,parties have cited the Supreme Court of Canada’s decision in Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para15,[2012] 1 SCR 5 [Catalyst], to support their positions that the reasonableness standard of review applies. In that paragraph, the SupremeCourt stated that: Unlike Parliament and provincial legislatures which possess inherent legislative power, regulatory bodies can exercise only thoselegislative powers that were delegated to them by the legislature. Their discretion is not unfettered.

The rule of law insists on judicialreview to ensure that delegated legislation complies with the rationale and purview of the statutory scheme under which it is adopted.The delegating legislator is presumed to intend that the authority be exercised in a reasonable manner.

Numerous cases have acceptedthat courts can review the substance of bylaws to ensure the lawful exercise of the power conferred on municipal councils and otherregulatory bodies. [35] However, it is also significant that the Supreme Court noted in paragraph 12 of Catalyst , that “[t]his substantive review ispremised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to beexercised unreasonably, or in some cases, incorrectly. [36] In my view, the presumption of reasonableness mentioned in paragraph 15 – “that the authority be exercised in a reasonablemanner” – is rebuttable, if the issue that is under review dictates that a different standard be used: Alberta (Information and PrivacyCommissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 39, [2011] 3 SCR 654 [ATA].

As such, where the Applicantsspecifically contend that an administrative legislation, i.e. the Inducement Prohibitions, made by the College is ultra vires, as theycontravene the provision of section 3(1) and 3(2) of the Health Professions Act, I am of the view that the correctness standard applies. [37] In the present case, the Applicants allege that the College has gone beyond its power, and acted ultra vires to regulate theconduct of pharmacies and pharmacists so as to protect the public interest in receiving safe and competent care, and that it has steppedinto the area of regulating pricing of pharmaceutical products and services.

It is the responsibility of the reviewing superior court toassess and determine whether the College’s legislative action, in the circumstances of the Applicants’ allegation, is intra vires or ultravires.

That is a question of vires, regarding which the Supreme Court prescribed the application of the correctness standard of review:Dunsmuir (at paras 59-60 (see paras 22-23 above)) and United Taxi (at para 5). [38] In the context of the present judicial review, the question identified by the Supreme Court in United Taxi can be reframed asfollows: Whether the prohibition of inducements offered through loyalty program by pharmacies and pharmacists was ultra vires theCollege under the Health Professions Act: United Taxi at para 5. [39] The Supreme Court indicated that this type of question “exemplifies a true question of jurisdiction or vires”: Dunsmuir atpara 59.

Further, the Supreme Court confirmed that “such a question will always be reviewed on a standard of correctness”: United Taxiat para 5, citing, Nanaimo (City) v Rascal Trucking Ltd, 2000 SCC 13 , [2000] 1 SCR 342 at para 29. [40] In my view, the College does not possess any greater institutional competence or expertise than this reviewing Court indelineating its jurisdiction: Ibid. [41] In terms of the issue of public interest, it is clear that, in the context of the Health Professions Act, the College, as aprofessional regulatory body, is empowered to regulate pharmacies and pharmacists and to ensure the health and safety of the public inrelation to sale, dispensing and prescribing of prescription drugs and other designated pharmacy services. [42] However, the question remains whether this mandate to regulate pharmacies and pharmacists in relation to prescription drugsand other designated pharmacy services, under the Health Professions Act, extends to, or authorizes the College to police public interestin relation to the maintenance of competition among pharmacies and pharmacists, through the regulation of loyalty programs offered toconsumers at large. [43] In order to determine whether the College has that mandate or not under the Health Professions Act – regarding which only asingle answer could exist – the reviewing Court is required to apply the correctness standard in assessing the administrative legislation(or Inducement Prohibitions) that the College enacted to achieve that objective. [44] If this Court concludes that the Health Professions Act confers that authority, and that the College has the mandate, the nextstep would be for this reviewing Court to assess whether, in light of the records, the College was correct in prohibiting loyalty award byenacting the Inducement Prohibitions.

[ 45 ] The question of “public interest” mandate in the Health Professions Act cannot be accurately described as one where the College has a better institutional competence or expertise than this reviewing Court. In other words, what constitutes “public interest” in the context of any legislation is not a “discrete and special legislative regime” in which the College has special expertise.

The identification of what constitutes “public interest” in circumstances where the College prohibits loyalty programs that are offered to consumers in general is an issue that, in my opinion, “courts must be assumed to have the same familiarity and expertise with the statute as the board”: Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 35 at paras 10-16 [ 46 ] Further, in my view, the issue of what is in the “public interest” under the Health Professions Act is a question of law that has the characteristic of an issue “that is both of central importance to the legal system as a whole and outside the [College’s] specialized area of expertise: Dunsmuir at para 60 ; and Mouvement laïque québécois v Saguenay (City) , 2015 SCC 16 , at para. 51 [2015] 2 SCR 3 [ Saguenay ]. [ 47 ] A review of the Health Professions Act dealing with the term “public interest” indicates it is of central importance to the legal system as a whole and is beyond this particular college’s specialized area of expertise.

This is so in the sense that this enabling statute not only governs pharmacists but 27 other professions.

It is not only the pharmacists who have a positive mandatory duty to carry out their activities and to govern themselves “in a manner that protects and serves the public interest”. [ 48 ] This positive mandatory obligation to govern and regulate in a manner that protects and serves the public interest applies to acupuncturists, chiropractors, combined laboratory and x-ray technicians, dental assistants, dental hygienists, dental technologists, dentists, denturists, hearing-aid practitioners, licenced practical nurses, medical laboratory technologists, medical diagnostic and therapeutic technologists, midwives, naturopaths, occupational therapy, opticians, optometrists, paramedics, pharmacists, physical therapists, physicians, surgeons and osteopaths, podiatrists, psychologists, registered dieticians and registered nutritionists, registered nurses, registered psychiatric and mental deficiency nurses, respiratory therapists, social workers and speech language pathologists and audiologists. [ 49 ] It is therefore evident that what is meant by “in a manner that protects and serves the public interest” is of central importance to the legal system as a whole, even when interpreting the Health Professions Act , as a single legislation which impacts 28 professions that are extremely varied in terms of the services rendered.

However, the one common obligation is that each profession under the Health Professions Act must govern its activities and that of its members in a manner that protects and serves the public interest. [ 50 ] It would be logical that since all of these professions, including pharmacists, derive their mandates from the one legislation, the Health Professions Act , the meaning of protection and service of the public interest should be consistent. [ 51 ] The issue of the public interest is not only limited to the health professions as contained in the Health Professions Act .

Of interest is the Agrology Profession Act , c. A-13.5, and the Regulated Forestry Professions Act , c. R-13, s 3(1)(a), which in fact mirror the language contained in the Health Professions Act , s 3(1)(a), which reads as follows: The institute must (

a) carry out its activities and govern its regulated members in a manner that protects and serves the public interest. [ 52 ] Other professions such as architects and engineers are also subject to protection of the public interest. ( Section 9(1) (

g) of the Architects Act , RSA 2000, c. A-44, and s 19(1)(

j) of the Engineering and Geoscience Professions Act , c. E-11) Section 9(1)(

g) read as follows: The Council may make regulations (

g) establishing and providing for the publishing of a code of ethics respecting the practice of architecture, the maintenance of the dignitary and honour of the profession of architecture and the protection of the public interest. [ 53 ] A similar provision applies to the chartered professional accountants.

Section 2(

a) and (

b) of the Chartered Professional Accountants Act , c C-10.2, read as follows: The purpose of this Act is (

a) to protect the interests of the public; and (

b) to promote the integrity of the profession governed by this Act. [ 54 ] The list of the above itemized legislation is not exhaustive but clearly demonstrates that the obligation to carry out activities and the governing of regulated members in a manner that protects and serves the public interest is not limited to the health care professions, but includes, as noted above, forestry and agrology as an example. [ 55 ] It is true that tribunals, boards and courts have often defined public interest in terms that reflect the purpose of the enabling statute.

Therefore, what is meant by “in a manner that protects and serves the public interest”, at least as stated in the Health Professions Act applies to all 28 of the health care providers identified. All 28 of these health care providers, including pharmacists, are subject to the same home statute, and as a result, consistency in its

interpretation is important. In fact, the Supreme Court of Canada stressed the importance of general questions of central importance and the necessity of basic consistency in a unanimous decision.

In Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2011 SCC 53 , stated the following at para. 22 [ Mowat ]: On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic consistency in the fundamental legal order of our country. [ 56 ] A review of the various legislation as noted above when attempting to define what “public interest” means is clearly an important question to the legal system as a whole.

Further, what is meant by “in a manner that protects and serves the public interest” must be correct in order to avoid 28

interpretations (possibly inconsistent and contradictory) when applying the same home statute. [ 57 ] Based on the foregoing, I find that the presumption of reasonableness review, which could have emanated from the Health Professions Act being the home statute of the College, is rebutted in the circumstances where the College enacted an administrative

legislation impacting loyalty programs and related competition issues: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 at para 39 , [2011] 3 SCR 654; Saguenay at paras. 46-47, 51. VIII. Conclusion [ 58 ] In conclusion, I find that the correctness standard of review should apply to the following issues:

i) whether the prohibition of inducements offered through loyalty program by pharmacies and pharmacists is ultra vires the College under the Health Professions Act ; and ii) whether, in light of the records, the mandate of the College, to regulate pharmacies and pharmacists under the Health Professions Act , and ensure public interest in relation to prescription drugs and other designated pharmacy services, extends to the maintenance of competition, through the prohibition of loyalty programs. Heard on the 2 nd and 3 rd days of December, 2015. Dated at the City of Edmonton, Alberta this 10 th day of March, 2016.

V.O. Ouellette J.C.Q.B.A. Appearances: Peter A. Gall, Q.C. & Andrea L. Zwack Gall Legge Grant & Munroe LLP for the Plaintiffs David N. Jardine & William W. Shores, Q.C. Shores Jardine LLP for the Defendants